DID TASER SHOOT ITSELF IN THE FOOT – WHOOPS, IN THE CHEST?
October 26, 2009
On October 12, 2009, Taser International issued Training Bulletin 15.0 in which it stated that Taser has “lowered the recommended point of aim from center of mass to lower center of mass for front shots….” The Bulletin explained that although the risk of cardiac arrest, after the weapon was deployed, was “extremely low,” avoiding the chest area lesses the legal argument about whether or not a heart attack was caused by the electrical jolts.
Taser states in the Bulletin that “should sudden cardiac arrest occur in a scenario involving a Taser discharge to the chest area, it would place the law enforcement agency, the officer and Taser International in the difficult situation of trying to ascertain what role, if any, the Taser … could have played.” The Bulletin recommends that, when aiming at the front of a suspect, the preferred target zone would be the “major muscles of the pelvic area or thigh region” and “back shots remain the preferred area when practical.”
Reactions to the Bulletin
The issuance of the Bulletin caused, literally, an international reaction. Police forces across Canada, including the Royal Canadian Mounted Police (RCMP), and the United States, which utilize the Taser, immediately upon receipt of the Bulletin began reviewing and changing their policies to comply with the recommendation.
A Canadian government investigation in July of this year had concluded that the Taser electronic control device (ECD) can cause death. The investigation was initiated as a result of the 2007 death of a 40 year old Polish immigrant, Robert Dziekanski, at the Vancouver International Airport. Dziekanski was on his first ever flight from Poland to join his mother in British Columbia. He became lost and wandered the airport for 10 hours. Police had been summoned because of erratic behavior “by a distraught man” in the arrivals lounge. According to the investigation, within 30 seconds of arrival, the RCMP deployed the Taser, discharged it five times, and Dziekanski died within minutes of being hit.
Following the release of the Training Bulletin, news articles and TV throughout the United States, Canada, Australia and elsewhere reported on it. The recommendation by Taser has been called a significant change in their long standing position. For years, Taser has argued in court that its ECD does not induce ventricular fibrillation, which is chaotic and irregular heart rhythm, which results in sudden death.
Most experts who have weighed on the training bulletin’s recommended change have generally stated that the advice from Taser is logical and that they have no problem with the suggestion. For example, Major Steve Ijames, who is the lead instructor for the National Tactical Officers Association and IACP’s less lethal “train the trainer” programs, told PoliceOne.com News, that he’s “fine with the new Taser advisory.”
However, Street Survival Seminar lead instructor, Lt. Jim Glennon, says that the problem with this advisory is that “in a fluid, dynamic use-of-force situation – a violent encounter with a suspect facing you – we will now be trying to direct a police officer to take aim for an area that doesn’t involve the head, chest or groin. So what you’re talking about is the stomach and leg area, which are not reliable targets.” As to the recommendation that officers aim at a suspect’s back, Glennon asked, “What are you going to do, ask the suspect to turn around?”
Glennon said what concerns him most about the advisory is the potential for confusion that might make an officer hesitate when faced with a violent suspect, driven by a fear of litigation that would place blame on the officer involved – rather than TASER International – should a suspect be injured after being hit in the chest by the device.
Follow Up Memo from Taser
The reaction to the Training Bulletin was so significant that, a few days later, Taser issued a follow up memo which states, “we are aware that the recent TASER Training Bulletin 15.0 and the revised warnings have caused some agencies and the media to misinterpret the message in the bulletin.” They go on to state that, “the recent release of our Training Bulletin should not be interpreted as a significant change in how our products should be used. The recommendations should be viewed as best practices that mitigate risk management issues ….”
They state that the “preferred target zone” was changed in order to reduce the potential legal argument that the use of the ECD caused a heart attack, if one occurs in the subject. “Should Sudden Cardiac Arrest occur in an arrest situation involving a TASER electronic control device (ECD) discharge to the chest area – plaintiff attorneys will likely file an excessive use of force claim against the law enforcement agency and officer and try to allege that the TASER ECD played a role in the arrest related death by causing ventricular fibrillation (VF), an arrhythmia that can be fatal without intervention.”
Damned If You Do, Damned If You Don’t
For years, law enforcement was the target of complaints and lawsuits alleging that officers utilized deadly force because there were no reasonable alternatives available. As a result, many weapons and techniques were designed to be less than lethal devices – for example, the carotid artery hold, OC Spray, bean bag shotguns, nets, and the ECD. Nonetheless, much litigation has been initiated as a result of utilizing each of those techniques and/or weapons.
Many individuals and organizations have challenged the use of the ECD, even though studies have shown that when properly used they are safe and that, since its been used there has been a corresponding reduction in the use of deadly force. No one is saying the tool has never been used inappropriately, but calls for it to be prohibited seem to be counterproductive.
In an article in The Arizona Republic, Mark Silverstein, the legal director for the Colorado American Civil Liberties Union who, it states, has tracked Taser use for years, states that this change in policy by Taser “… is further evidence that law enforcement agencies need to stop and ask if they have been sold a bill of goods. This (training) bulletin confirms what critics have said for years; that Taser has overstated its safety claims …. (It) has to be read as if Taser can cause cardiac arrest.”
HOW THIS AFFECTS YOUR AGENCY
As defense counsel for law enforcement agencies, we cannot ignore a concern which might adversely affect our clients. The reality is that lawsuits will be generated as a result of virtually any use of force by a peace officer. Our job is to show a judge and jury that the use of force was necessary and appropriate under the circumstances confronting the officer.
As such, the existence of well drafted policies on the use of force has always been of paramount importance. Along with the policies, training on the use of force is equally important. What we would urge is that policies do not prohibit chest shots. It’s one thing to recommend that the “preferred target zone” be used, but a prohibition creates serious problems if an errant shot lands outside that zone. We always urge avoiding “shall” and “shall not” language in policies, when possible.
The concern raised by this training bulletin, however, is that it will be used by plaintiff attorneys when claiming that the use of an ECD caused cardiac damage to the plaintiff. It would almost be malpractice for a plaintiff’s attorney to not hold up Training Bulletin 15.0 in front of the jury if, by chance, the ECD struck the suspect in the chest area and a cardiac episode occurred.
It is always our burden to prove that our officers were not malicious nor negligent when utilizing force of any kind. Accidents can always occur in situations which are volatile and where aggressive, violent behavior is directed at our officers. But all law enforcement agencies and officers must be constantly aware of the need to be able to justify and explain what they did in response to such aggression. The Taser Training Bulletin will just add to that burden but, “it is what it is.”